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John Echohawk, Native American Rights Fund executive director, (left) and his team have issued a statement in regards to one of the Cobell lawyers' (pictured with Elouise Cobell) claims over fee payments from the Cobell settlement.

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Native American Rights Fund Fires Back at Cobell Lawyers Over Fees

Rob Capriccioso

9/19/12

WASHINGTON – In the ongoing battle over millions of dollars in legal fees related to the pending $3.4 billion Cobell settlement, the Native American Rights Fund (NARF) has rebutted claims by the Cobell lawyers that the non-profit Native legal organization does not deserve to be compensated for its role in the case.

The settlement calls for almost $100 million to be paid for all the lawyers, and the court has indicated it will award the Cobell lawyers $85.3 million and hold the remaining $13.6 million in reserve for possible payment to NARF and other claimants. All those payments are currently on hold pending an Indian appeal to the U.S. Supreme Court by Sisseton-Wahpeton Oyate citizen Kimberly Craven, who has argued that the settlement is flawed under class-action law, and unfair to the Indian class members of the case.

In a petition filed with the U.S. District Court for the District of Columbia on September 7, NARF says it is due $8.1 million for the 31,300 hours its lawyers and legal staff worked on the case. “These were important hours, especially the thousands of hours NARF contributed during Phase I of the litigation, when the ultimate outcome was most uncertain,” the petition says. “NARF fairly valued its hours by using the U.S. Attorney’s Office’s Laffey Matrix to compute its fees request. NARF provided the Court with time and cost records substantiating its claim.” (NARF points out in the brief that under the Laffey Matrix formula, the Cobell lawyers would be due at most $68.1 million; Cobell lawyers have previously sought $223 million in fees, which NARF says works out to an average hourly rate of $1,585.)

On July 30 and again on September 17, the Cobell lawyers, including lead lawyer and private practitioner Dennis Gingold, as well as Keith Harper and lawyers with his firm, Kilpatrick Townsend & Stockton, filed notices with the court that said NARF deserved nothing. The Cobell lawyers argue that NARF lawyers shouldn’t get any fees because they left the suit in 2006, without the consent of the class representatives. They also argue that NARF had a conflict of interest because they were receiving money for representing tribes in a separate tribal trust case.

The notices of the Cobell lawyers did not mention that the lawyers with the Kilpatrick Townsend & Stockton, like NARF, also received payments for its representation of tribal trust clients. “If, as [Gingold and Kilpatrick Townsend & Stockton argue], the Court should consider fees and donations NARF received outside of the Cobell case, it also should analyze other fees and funds received by [Gingold and Kilpatrick Townsend & Stockton],” the NARF notice says, referring in part to three tribal trust settlements Kilpatrick Townsend & Stockton worked on at the same time NARF was doing those tribal trust cases. “If the Court engages in such a review, it likely would not conclude that [Gingold and Kilpatrick Townsend & Stockton need] the $85.3 million that this Court already has awarded it, let alone a share of the $13.6 million from the Common Fund that the Court has held in reserve. Indeed, published reports indicate the Kilpatrick firm grossed around $360 million last year, with average profits per partner of $630,000.”

Gingold has previously said there was nothing wrong with Kilpatrick Townsend & Stockton’s tribal trust representation because the firm got permission from him and lead plaintiff Elouise Cobell to do such work.

NARF says the Cobell lawyers are asking the court to take “unprecedented action” by asking it “to analyze fees and voluntary donations received by NARF outside this case as a way of determining whether NARF deserves to be reimbursed for its work on this case.… NARF is not aware of any court ruling or other law that requires a party that has applied for attorneys’ fees to provide information about receipts arising from other unrelatedmatters or activities in order for the court to decide whether the applicant deserves a fees award.”

NARF goes on to note the difference between its funding structure and those of the firms of the Cobell lawyers: “In asserting that NARF abandoned the Class so it could obtain a ‘lucrative’ payout in other cases, [Gingold and Kilpatrick Townsend & Stockton try] to portray NARF as a group of money-hungry lawyers… Such a charge is baseless, and it reveals more about [Gingold and Kilpatrick Townsend & Stockton’s] motivations in this case than it does about NARF’s. NARF’s attorneys make a fraction of what they could earn in private law firms. They have sacrificed their own personal earning potential to help protect and advance the rights of Native Americans. Moreover, as a non-profit Indian interest firm, NARF does not award profits or bonuses to its staff. Instead, NARF reinvests whatever amounts it receives (whether in the form of fee payments or contributions) to fulfill its mission of providing services to Native Americans. This is in marked contrast to [Gingold and Kilpatrick Townsend & Stockton], which is a collection of privatelawyers set to receive a ‘lucrative’ payout from the [Cobell settlement] who will personally benefit from their profits.”

NARF notes in its brief that Harper worked for NARF while working on Cobell, but Kilpatrick Townsend & Stockton “hired Harper away from NARF for more money. Harper had been NARF’s main attorney and heaviest biller (by far) on this case. Harper’s role and work did not change when he moved to Kilpatrick, only his affiliation did. Harper continued to do the same things for the Class as a Kilpatrick lawyer that he had been doing as a NARF lawyer….”

NARF rebuts the Cobell lawyers’ claim that NARF abandoned the Cobell class members by taking on tribal trust settlements, saying that its lawyers “did anything they were asked (although, after Harper left, NARF found itself increasingly frozen out by [Gingold and Kilpatrick Townsend & Stockton], apparently because Gingold no longer felt the legal team needed NARF to provide an ‘Indian face’).”

NARF further says that Elouise Cobell “never discharged NARF” and that “NARF never withdrew from this case.”

Gingold continues to argue in support of the Cobell lawyers’ July notice, saying that the NARF response is legally inappropriate and “untimely.” He says the NARF notice is inappropriate because it offers new information in the form of a legal argument although no new decision has been made by the court, which he says is not allowed. He adds that legal rules require that opposition briefs be filed within 17 days of the opening brief, so he calls NARF's filing “about a month late.”

Richard de Bodo, a lawyer with DLA Piper, which is representing NARF in this matter, says in an e-mail that “NARF’s response was not untimely. Mr. Gingold’s ‘notice’ was not a motion. Therefore, the Court’s rules regarding the time by which a party must file an opposition do not apply. When we received the ‘notice,’ we checked with the court’s clerk and confirmed that the court’s rules did not establish a deadline for NARF to file a response. Consequently, Mr. Gingold’s assertion that NARF’s Response was ‘untimely’ is false.”

The final decision on lawyers’ fees will be made by Judge Thomas Hogan, of the U.S. District Court for the District of Columbia.

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I had a simular problem. Hired a lawyer that "claimed" he was working for me but I had never seen much action. After 3 years, I hired another lawyer and fired the first. After the claim was settled in 2 months, the first lawyer stepped up for an outrageous amount. I gave all info to the second lawyer that I had gotten from the first, he figured the fee and THAT WAS ALL I PAID the bum! I gave my second lawyer more than he asked for because he settled so quick, showed me what a thief the first one was. I did not have to pay the first one anything because he had never kept me posted as to "offers" but paid him for what he had done and told him I would report him! This is all bull. Eloise fought hard and long for others with NO HELP from tribes. Where were they during the 15 years she fought. I am against the cost of Eloise's lawyers as too high but they DID SETTLE IT! As far as the second group and this idiot woman blocking pay out, no use for with group. It has become ALL ABOUT THE MONEY, money stollen from the PEOPLE. Why should these two get anything? This little witch has oney and is stopping the PEOPLE from their own money and for vital things they need to live on. She blew it when she didn't file against it properly. She has FREE advise and lawyers. It is time to pay the PEOPLE and help these tribes and members. Don't be paying jerks for jobs they did not finish or complete. Pay em for what they did and if they didn't do it FOR ELOISE, then let the little witch pay em!

Kimberly Craven is not the problem.
The US Dept of the Interior run by Obama is the problem.
We were suppose to get &gt;$100,000 each. Instead we're getting less than $2000 each. I remember the last time we got $2000 was back in 1978; and some BIA agent had a town meeting in the old (Blackfeet)Browning Montana High School gym and he PROMISED us this $2000 was just hold us over until we got the really big payout which would be very soon. That was 34 years ago!!
Obama and his predecessors have been siphoning billions and billions off of our land for decades. You go Kimberly!
I've been unemployed for 3 years but I'm willing to give up the $2000 to see the Supreme Court finally rule in our favor. Good thing Supreme Court Justice Roberts recused himself because he would never do the right legal thing and he'd rule against us.
Gingold is trying to get people mad at Craven so he can get his flippin' $85 million! He doesn't want to fight for us anymore so Kimberly has picked up the battle for us! Be grateful for her! She is so brave to fight for us and I support her 100%!

I have to say something else as well...
Thankfully my Blackfeet mother married a white man off the reservation and I grew up in a charmed society. My mom told me that she had 300 acres of Indian trust land that she inherited when her dad died before she was born. Regardless, she was forced to live in a home with an outhouse, no plumbing, and shared one lousy bed with all of her siblings and was lucky to find a cup of rice in a cupboard! I was LIVID!
Who ever heard of such a ridiculous thing!
She's 72 now and NOTHING'S CHANGED. She still has no say over her OWN land.
You sure wouldn't see a white guy put up with that bolonie from the government!
Colin Powell said it all on 9 June 2010:
"...you can't be a softie...You've got to be tough....Haven't you been in this situation? There is a slacker....You get madder and madder....and think...'Doesn't somebody SEE this?'
"A leader that doesn't have guts to be tough....and allows good people to suffer...is not a leader...so you say “You are not getting the job done...I am going to have to retrain you, or fire you....'
"If you are tough, your troops will follow you, if only for curiosity....The day will come, when the enemy is at the top of the hill.... 2 new competitors move in....Your troops will follow you, if only to see HOW you are going to get them OUT of this mess....
It all boils down to trust." Craven and the 3 other petitioners are our new leaders with this case and we need to trust them to get us out of this mess.
Are we really going to settle for a 'mess of pottage' when we should have the entire kingdom? ($2,000 instead of &gt;$100,000!)

You seemed to be misinformed and/or don't know what you’re talking about.
Obama isn't stealing the money he was the only President that agreed to settle and identified Indian people were wronged.
The money has been missing up to 100 years. Obama only been in office less than 4 years. So get your fact straight. He didn't steal anything.
I agree Kimberly Craven has every right to appeal (like the rest of us)but the last appeal she did was sloppy work and no fact stated to back her appeal. People might support her if she was specific and really did her homework and outlined exactly what she is trying to accomplish and why. All appears to be so vague from the documents I have read.
As for as you being out of work for 3 years seems a bit much and maybe it time for you to take accountability for yourself and stop blaming others! Time to get off the pity party. It's not Obama fault you’re out of work, it's yours!
Each and every one of us are in charge of our own destiny and it’s up to us to choose the paths we want in life. We can make it easy for us or difficult. You do have choice!

Obama is the one who made the final determination of how much to give the Native Americans.
He's a thief, got it?
For your information I just finished a 2 1/2 year MBA-IT program last month. I hardly call that a pity party. I bet you didn't even finish high school.
You sound like you've got a bad case of "sour grapes". You can't have any of our Trust land money so you have to make Indians look lazy. If you're not a white person you're definitely an "Apple Indian" (red on the outside, white on the inside!)

If Obama can write over 200 Executive Orders and distribute over $5 Trillion he sure as heck can write an executive order to give the Indians $53 Billion!
Like I said, he's a thief and steals from Native Americans!

I'm surprised with someone as educated as you say you are, the ignorance that falls all over the place in your pity party statements above. Such a shame.
Honey, Elouise is from my tribe and in no way did she guarantee you or $100k or anyone else. Get real and stop blaming others!
I too have my MBA-IT, several years before you and have been in the industry for 30+ years.
So please stop not embarrasing yourself and the Native people.
Work for what you deserve. Don't wait on handouts!

Sunny, you're such a flippin' liar. You don't have an MBA-IT degree; what are the chances that you studied the same career that I did, give us a break!!
Elouise Cobell is a close relative. You're also no flippin' Indian. What idiot would give up over $100,000! You sound like a jealous person who sabotages everything you can't have.

Where can I find records of the 500,000 native Americans they say will be dividing the settlement? Minus college fund,lawyers fee's and monies to buy back fractionated land. As for the amount settled for by the lawyers on our behalf, it is a far cry from the 44 billion originally asked for,.I don't see President Obama as the hero in this final settlement in the least.